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Following the Obama White House’s Call to Action in October 2016, state legislatures have been busy enacting restrictive covenant reform, particularly to non-compete laws. By our count, eight (8) states have enacted some type of reform since the Call to Action. Some of this activity may have been in the works prior to the Call to Action, but others are undoubtedly following the Obama White House’s Best-Practices Policy Objectives:

Executive Summary: On May 18, 2018, the U.S. Department of Labor (DOL) issued a press release announcing an Office of Federal Contract Compliance Programs (OFCCP) Directive that extends by two years the enforcement moratorium pertaining to the affirmative obligations of TRICARE providers. TRICARE is a health care program through the U.S. Department of Defense (DOD) that pays health care benefits to active duty and retired military service members and their families. The moratorium, which had previously been in effect for four years and was set to expire this month, will now expire on May 7, 2021. The OFCCP also expanded coverage under the moratorium to apply to Veterans Affairs Health Benefits Program providers, in addition to TRICARE providers.

ocial media is so powerful that some argue Russian manipulation of it changed the result of a U.S. presidential election. In the employment context, social media is not quite that powerful, but employment-context social media is pervasive, reaching interactions between employers and employees, interactions among co-workers, and staff interactions with the outside world.

When you last heard from me regarding the state of the gig economy, the discussion at the beginning of 2018 focused on the fact that small businesses were joining large corporations in embracing the on-demand model. Now, let’s shift focus from the “who” to the “where” and the “what.”

The European Union’s General Data Protection Regulations (GDPR) comes into effect in a few days, on May 25, 2018. Companies have been working to understand the significance of those new rules, and to determine their effect on US companies.

Until recently, the Carolinas were relatively immune to litigation surrounding alleged excessiveness of 401(k) plan fees. But last month in the U.S. District Court for the Western District of North Carolina, employees of big-box retailer Lowe’s filed a complaint alleging that the company’s fiduciary decisions to replace certain investments funds with a “largely untested” and “underperforming” alternative caused the loss of millions of dollars in potential earnings for plan participants. While fiduciary actions are common during economic downturns, this matter – coupled with the development of relevant case law – suggests that allegations involving 401(k) plan costs and lost investment opportunities may become just as common during a boom.

The decision this week of the Supreme Court of the United States in Epic Systems Corporation v. Lewis will likely prove important on issues other than the arbitration of labor disputes. An extended passage in the opinion (from page 19 through 21 of the slip opinion) is likely to alter the deference rule of Chevron and perhaps that of Auer as well. (Chevron deference pertains to statutes; Auer deference pertains to regulations.)

The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.

In the wake of the Harvey Weinstein revelations and the numerous claims of alleged sexual harassment against big name celebrities and public officials, employers are re-examining their sexual harassment policies. As the number of sexual harassment allegations have increased in almost every business sector, more and more women have felt empowered to come forward. This tests employers’ ability to timely investigate the claims and determine what, if any, appropriate corrective action is warranted against the alleged harasser. It also tests the employers’ ability to respond to claims that lack merit. However, another challenge is what happens when the dust settles and the victim or non-victim is a still a current employee?

The Federal Arbitration Act (FAA) has long permitted employers to require employees to agree to arbitrate legal claims that may arise out of their employment. Today, the United States Supreme Court ruled that this extends to class and collective actions.

U.S. Immigration and Customs Enforcement (ICE) announced that it opened 3,510 worksite investigations in the past seven months, more than doubling the number of investigations opened during fiscal year 2017. The scrutiny on U.S. employers is part of ICE’s effort to create a “culture of compliance” in the business community and is expected to intensify as President Trump takes further steps to crackdown on immigration abuses.

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the spring 2018 issue of the Practical NLRB Advisor . This issue examines the evolution of the controversial joint-employer saga as it develops at the National Labor Relations Board (NLRB). Readers will recall that in December 2017, among the many important decisions the NLRB issued at the end of then-chairman Philip Miscimarra’s term was Hy-Brand Industrial Contractors, Ltd., which overturned the Board’s controversial decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery from 2015.

When an employment discrimination case goes into litigation, two of the very first things an attorney will want to see is the charge of discrimination that was filed by the employee and the response that was provided by the employer. If the employer initially responded to the investigating agency without the help of legal counsel, mistakes or oversights may have been made during the administrative phase that can affect the case’s overall success during litigation. Here are some common mistakes employers sometimes make when responding to a charge of discrimination.

As we approach Memorial Day and honor veterans for their service to the US military, it is important for an employer to recognize the discrimination and unfair treatment many veterans still face in the workplace today. In fact, just recently, a manufacturing company paid $75,000 to settle a disability discrimination and harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a veteran with post-traumatic stress disorder (PTSD). The veteran claimed he was harassed and called a “psycho” by his supervisors and coworkers because of his condition.

State legislatures across the country have been active in recent years proposing and enacting legislation concerning employers’ use of restrictive covenants. These new laws alter the legal landscape in an area where compliance was already difficult due to the vast differences between states. It is imperative that employers stay up-to-date on these changes. Accordingly, this will be the first of three posts addressing the recent wave of state-level legislative activity in this area that we have seen over the past year and a half.

On May 18, 2018, the U.S. Office of Federal Contract Compliance Programs (OFCCP) issued a directive ending uncertainty as to whether efforts to audit TRICARE participants will resume in 2019 and signaling an encouraging willingness to reconsider the agency’s prior positions on this issue. Directive 2018-02 announces a two-year extension of the current moratorium on enforcement of federal contractor obligations based on TRICARE participation through May 7, 2021.

After a tumultuous 2017, federal, state, and local governments have spent the start of 2018 reconsidering their approach toward sexual harassment in the workplace. While the federal government has focused on settlement and arbitration agreements, state governments have attempted a variety of techniques to address sexual harassment. States are considering legislation ranging from additional sexual harassment training, to protecting employees from retaliation when they are the victims of sexual harassment. This article discusses the new laws that seek to combat sexual harassment, as well as those legislative efforts that remain pending.

U.S. Immigration and Customs Enforcement’s former acting Director, Thomas Homan, indicated last fall that he wanted to quadruple worksite enforcement, and ICE is on track to do so. ICE recently announced it performed 3,510 worksite enforcement actions between October 1, 2017 and May 4, 2018. During the entire fiscal year of 2017, ICE conducted only 1,716 actions. ICE has also already performed 2,282 I-9 audits during fiscal year 2018, while performing only 1,360 audits during fiscal year 2017.

According to a May 18, 2018, press release, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has extended its moratorium on enforcing the affirmative action obligations of TRICARE providers (a health care program of the U.S. Department of Defense that pays for the medical benefits of active duty and retired military personnel and their families). According to a new OFCCP directive, the moratorium, which has been in effect since 2014, will now expire on May 7, 2021. In a footnote, Directive 2018–02 also amends the moratorium to include Veterans Affairs Health Benefits Program providers in addition to TRICARE subcontractors.

The Buzz returns renewed and reenergized from last week’s highly successful Workplace Strategies conference in Phoenix, Arizona, where approximately 800 employer representatives gathered with Ogletree Deakins lawyers to discuss current developments and the future outlook for all aspects of labor and employment law (if you missed this year’s event, be sure to join us at the Bellagio in Las Vegas in 2019). Overheard at Workplace Strategies: “Is that beer-packing burro an employee or an independent contractor?”

It is commonly understood that employees bear the burden of proving that they are covered by the Fair Labor Standards Act (FLSA), and, to avoid minimum wage or overtime obligations, the employer bears the burden of proving that an exemption to the FLSA applies. One such exemption – common in the transport and energy industries – is the exemption under the federal Motor Carrier Act (MCA). If an employer can demonstrate that workers are covered by the MCA exemption,1 then the FLSA’s overtime requirements will not apply to those workers—with one major caveat.

ven something as simple as a statement that an employee has changed his or her medications can be treated as notice from an employee that an accommodation might be needed. An employee need not use any particular words or phrasing to request an accommodation; he or she need not even use the word “accommodation.” The key is that the employee has given his or her manager notice that a health condition may be affecting the employee’s ability to do his or her job. Employers may want to train managers to recognize these types of statements as notice that a reasonable accommodation may be needed and initiate the interactive process upon hearing such statements.

Summertime is quickly approaching and 'tis the season for beach vacations, fun in the sun, and summer hires—many of which will be under the age of 18 years old. In anticipation of summer hires, employers may want to familiarize themselves with the federal laws outlining child labor restrictions. Under the Fair Labor Standards Act (FLSA), the U.S. Department of Labor (USDOL) has issued youth employment regulations. While there are some exceptions, generally "youth" are entitled to minimum wage and overtime, but the FLSA includes other protections in the form of when and what a minor can do.

The U.S. Department of Justice (DOJ) and the Department of Homeland Security (DHS) have partnered to establish a framework to efficiently manage and maintain information sharing to better detect and eliminate fraud, abuse, and discrimination. The goal of the framework is to protect U.S. workers from employment discrimination resulting from policies that favor foreign visa workers.

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Justice (DOJ) issued a Memorandum of Understanding (MOU) expanding their preexisting collaboration with the goal of better detecting and eliminating fraud, abuse, and discrimination by employers bringing foreign workers to the United States. The MOU is intended to provide an improved process for sharing information, collaborating on cases, and cross-training investigators from each agency.

USCIS and the Department of Justice are teaming up and collaborating to “better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” They have entered into a Memorandum of Understanding (MOU) that will increase their ability to share information about cases and training and make referrals.

Dear Littler: I work in the corporate office of a national retailer. We plan to hire several local student interns to work for us this summer, primarily in accounting and marketing. We enjoy sponsoring this program, and it works out well. In fact, in the past, we have hired a handful of summer interns as full-time employees after they graduated. We intend to offer some basic training on specific job duties, along with some broader exposure to various departments and our industry. Interns will likely assist our regular staff with “real” work, under close supervision. We like our internships to be unpaid because then we can take on more students and put the funding into memorable program activities. But now I’m wondering: should we be paying these interns?

The Don’ts of IBEW Local’s Dues Policy
IBEW Local 58’s policy requiring union members who want to resign their membership in the union or opt out of dues deduction to appear in person at Local 58’s union hall with a picture identification and a written request indicating the member’s intent violates the National Labor Relations Act, the U.S. Court of Appeals for the District of Columbia has ruled, upholding a decision of the National Labor Relations Board (NLRB).

Now that sports betting has been legalized by the Supreme Court, I might want to consider laying some action on an upcoming game, because I am on fire with my recent predictions. In a blog post from last week, I correctly predicted the two arguments that Grubhub would be making in response to the plaintiff’s argument that the trial victory should be wiped off the books and returned to the lower court for further proceedings. Late last night, the gig economy company filed a brief with the 9th Circuit Court of Appeals in an attempt to preserve its momentous trial victory.

Administrative Law Judges are increasingly exercising their discretion to waive mandatory settlement conferences for Occupational Safety and Health Administration (OSHA) citation contests with large penalties. The increased penalties that OSHA can now levy may be the reason.

As the summer draws near, many companies are considering bringing on summer interns. Interns are students or trainees who work in an organization in order to gain work experience or satisfy educational requirements. An internship can, and hopefully will, benefit the company that uses such a program. For example, internships may provide a pool of potential new hires for the company, serve as a source of inexpensive labor, foster a positive public image and community relations, and can build beneficial relationships with local communities and educational institutions. The question that always arises is: Does a company have to pay its summer interns? The short answer is: It depends on how you structure your intern program.

On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum changing the way the agency will calculate the accrual of unlawful presence for students (F-1), exchange visitors (J-1), and vocational students (M-1) in nonimmigrant status, and their dependents, while in the United States. The new guidance, which was issued in furtherance of President Trump’s executive order, Enhancing Public Safety in the Interior of the United States, is intended to target and reduce the number of visa overstays currently in the country. The policy will go into effect on August 9, 2018.